Daily Archives: July 11, 2017

“If ‘stand-your-ground’ laws weren’t controversial enough, Florida has enacted new legislation (backed by the NRA) that has prosecutors fuming and criminal defense lawyers salivating. There was a time in American jurisprudential history when the law favored de-escalation over a more Wild-West approach to antagonistic interactions among humans.” – WMU-Cooley Professor Brendan Beery.

So the rule used to be that, even if someone else was the aggressor, a person had a duty to retreat before using deadly force; if the person (the non-aggressor) exhausted all reasonable possibilities for escape and had no reasonable alternative, then (and only then) that person was justified in using deadly force. Note the word “reasonable” sprinkled through that rule: that’s an objective test, meaning that a person could only use deadly force in self-defense if a person of ordinary intelligence and temperament would have done the same. In other words, “I’m a hot head” was no defense.

There was a common-sense exception to this rule (this duty to retreat) called “the castle doctrine.” One had no duty to retreat in one’s own home – a burglar-beware sort of rule. After all, if one is already in one’s safest environment – one’s home – then where is one to retreat to?

As a Miami judge, Milton Hirsch, recently pointed out, the “stand-your ground” rule that has since been adopted by many states essentially expands the castle doctrine to apply everywhere; even in a public place, if one is not the aggressor in an affray, then one no longer has any duty to retreat. And that “reasonable person” standard has diminished to the point of near extinction. In other words, if a person fears that he or she is at risk of death or serious bodily harm at the hands of a perceived aggressor, regardless whether a person of normal intelligence and temperament would also harbor such fear, that person may use deadly force against the perceived aggressor. (Although one still sees the word “reasonable” in some of these stand-your-ground laws, it is now largely ignored.) De-escalation is decidedly not the policy objective underlying this new approach.

When Florida first adopted this “stand-your-ground” approach, the state’s Supreme Court created rules for its implementation: since this was a defense that would be raised by the defendant in a criminal case, when the defendant raised a stand-your-ground defense, a trial court would hold a pretrial hearing at which the defendant would have the burden of showing, by a mere preponderance of the evidence (just a slight tipping of the scales in the defendant’s favor) that he or she was in fear of death or great bodily harm – and therefore justified in using deadly force. To most lawyers, this seemed an entirely predictable and appropriate approach; the burden is almost always with the party raising a defense, and the relatively easy-to-meet preponderance standard made sense in light of the policy choice Floridians had made to render the use of deadly force an acceptable means for resolving a brawl, no matter where it occurs.

As forgiving as the preponderance-of-the-evidence standard is, pro-NRA conservatives were not satisfied. So the Florida legislature changed the rules earlier this year: now, instead of the defendant having to show by a preponderance of the evidence that he or she was entitled to use deadly force, the prosecutor must show by clear-and-convincing evidence that the defendant was not entitled to use deadly force. Not only has the legislature placed the burden on what lawyers call the “non-moving party” (i.e. the party arguing against the claim, not for it), but it also elevated that burden well above the preponderance standard, making it harder to meet.

The upshot is that, when a defendant raises the stand-your-ground defense, a prosecutor must put on his or her evidence twice: once to overcome the stand-your-ground defense at a pretrial hearing, and again in front of a jury or judge at trial. To make matters worse for prosecutors, they must also, at the pretrial hearing, essentially prove a negative: not that something did happen, but that something did not happen.

As my colleague Professor Jeffrey Swartz points out, this is a criminal defendant’s dream in any case where the defendant used deadly force – with a gun or without a gun – and there was no witness to the alleged crime. In such a case, a defendant who produces any evidence that he or she feared death or great bodily harm can put a prosecutor through the proverbial ringer: the prosecutor will have to show that the crime happened as the prosecutor said it happened – first by clear-and-convincing evidence, and then beyond a reasonable doubt.

Judge Hirsch has refused to apply the new rules shifting and increasing the burden of proof, stating that under the Florida Constitution, such procedural rules for resolving cases must be set by the Florida Supreme Court, not the Florida legislature. Other judges disagree. Ultimately, the Florida Supreme Court will have to address that issue. In the meantime, welcome to the Wild West.

Blog author, Constitutional Law expert and WMU-Cooley Professor Brendan Beery is a summa cum laude graduate of Western Michigan University Cooley Law School and teaches Constitutional Law, Criminal Law, and Criminal Procedure. Professor Beery is a frequent legal expert in the media.